Terms and Conditions applicable to a provider using Edgevana
THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR MEMBERSHIP OF THE EDGEVANA PLATFORM AND GOVERN YOUR ACCESS TO AND USE OF EDGEVANA SERVICES. THIS AGREEMENT IS A CONTRACT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND EDGEVANA. BY REGISTERING OR USING EDGEVANA SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE APPLICABLE POLICIES AND ANY COUNTRY TERMS THAT APPLY FOR EACH ELECTED COUNTRY FOR WHICH YOU REGISTER.
As used in this Agreement, “we“, “us“, and “Edgevana” means Edgevana, Inc, registered in the State of Delaware, United States of America, whose registered office is at Gust Delaware, Inc., 16192 Coastal Highway, Lewes, Delaware 19958, United States of America, and “you” means the applicant (if registering for or using Edgevana Services as an individual), or the business employing the applicant (if registering for or using Edgevana Services as a business) and any of its Aﬃliates.
If there is any conﬂict between these Terms and Conditions and the applicable Country Terms and Policies, the order of precedence shall be (most precedent first): (i) applicable Country Terms, (ii) these Terms and Conditions, and (iii) the Policies.
1. Definitions and interpretation
1.1 Capitalized terms have the meanings given to them in this Agreement.
|Affiliate||In relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.|
|Agreement||These terms and conditions and any schedules, annexures or exhibits hereto, and any appliable Country Terms, as amended from time to time in accordance with Section 3.|
|Applicable Data Protection Laws||Any applicable law, ordinance, statute, regulation or other binding restriction to which Personal Information is subject, including but not limited to the EU General Data Protection Regulation 2016/679.|
|Confidential Information||Information relating to us, to the Edgevana Marketplace or Edgevana Services, or members or users of the Edgevana Marketplace that is not known to the general public including, but not limited to, any information identifying or unique to speciﬁc customers; reports, insights, and other information about the Edgevana Marketplace or Edgevana Services; data derived from the Edgevana Marketplace or Edgevana Services except for data arising from the sale of your Provider Services (other than Customer personal data); and technical or operational speciﬁcations relating to the Edgevana Marketplace or Edgevana Services. For the purposes of this Agreement, Customer personal data constitutes Conﬁdential Information at all times.|
|Content||The textual, visual or aural content that is encountered as part of your experience on the Edgevana Marketplace. It may include, among other things: text, images, sounds, videos and animations. It includes content such as advertising material, and all other product or service-related material Posted by you.|
|Country Terms||Any terms and conditions published from time to time on the Edgevana Marketplace and which comprise part of this Agreement in respect of an Elected Country.|
|Customer||Any person entering into a Customer Contract with you who has accessed your Provider Service Profile on the Edgevana Marketplace.|
|Customer Contract||Any contract between you and any Customer, which contract shall either be on model customer terms published by Edgevana, or on such other terms as you and the Customer may agree and Edgevana approves.|
|Elected Country||Any country or jurisdiction stated in your Provider Service Profile as being a jurisdiction in which you provide Provider Services through the Edgevana Marketplace.|
|Edgevana Marketplace||Any website of ours, which includes all web pages controlled by us and the Edgevana Marketplace backend software.|
|Edgevana Service||The services we provide to enable you to market, sell and manage Provider Services and Customer Contracts on the Edgevana Marketplace, as such services are described from time to time on the Edgevana Marketplace.|
|Intellectual Property Rights||Any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia, or any other source or business identiﬁer, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.|
|Laws||Any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in eﬀect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.|
|Membership Fee||The monthly fee payable to Edgevana in respect of a Customer Contract, as specified on the Edgevana Marketplace and then confirmed to you in writing by Edgevana, which fee is to be first paid by you upon entering into a Customer Contract and thereafter each month, for the term of that Customer Contract.|
|Personal Information||Any data that identifies or, alone or in combination with any other data, could reasonably be used to identify, locate, or contact a natural person or household, or any other information that is considered “personally identifiable information,” “personal information,” “personal data,” or other similar terms under Applicable Data Protection Laws.|
|Policies||Any policies, regulations, guidelines or other documents named as such published from time to time by us on the Edgevana Marketplace and relating to your use of the Edgevana Marketplace or Edgevana Services.|
|Post||Place on or into the Edgevana Marketplace any Content or material of any sort by any means.|
|Provider||You, a person or organization who has placed details on the Edgevana Marketplace of a Provider Service offered for sale or free of charge.|
|Provider Materials||Any information or materials provided by you to us for use on the Edgevana Marketplace or in connection with Edgevana Services.|
|Provider Service||The services you advertise or offer for sale to potential Customers through the Edgevana Marketplace.|
|Provider Service Profile||Your profile on the Edgevana Marketplace which may be made available to potential Customers and the public and which describes you, the Provider Services you offer.|
|Taxes||Any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (speciﬁcally including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, oﬀer or sale of products or services by you on or through or in connection with the Edgevana Marketplace; or (b) otherwise in connection with any action, inaction, or omission of you or your Aﬃliates, or any persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which your Provider Services are, directly or indirectly, involved as a form of payment or exchange.|
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Unless the context otherwise requires:
1.3.1words in the singular shall include the plural and in the plural shall include the singular;
1.3.2a reference to one gender shall include a reference to the other genders.
1.4 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6 A reference to writing or written includes fax and email and a posting on the Edgevana Marketplace.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.8 This Agreement shall commence upon acceptance by you (indicated by you signifying your acceptance to this Agreement during you registration on the Edgevana Marketplace) and shall continue, unless terminated in accordance with Section 19.
2. Nature of our relationship
2.1 The relationship between us is solely that, in consideration of the promise of receiving a fee in the event of a Customer Contract being entered into, we provide for you a marketplace as an arm’s length contractor. We are an independent contractor to you and any Customer and nothing in this Agreement will create any partnership, joint venture, agency, franchise, or relationship of sales representative or employment between us. This Agreement will not create an exclusive relationship between you and us.
2.2 You have no authority to make or accept any offers or representations on our behalf or on behalf of any other members of the Edgevana Marketplace.
2.3 Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive beneﬁt of Edgevana and you. You will not make any statement, whether on your site or otherwise, that would contradict anything in this Agreement.
3. Modification of terms
3.1 We will provide at least 14 days’ advance notice in accordance with Sections 20.9 and 20.10 of changes to this Agreement, any Country Terms and any Policies.
3.2 However, we may change or modify this Agreement, any Country Terms and/or any Policies at any time with immediate eﬀect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Edgevana Services (where this does not materially adversely aﬀect your use of the Edgevana Services); or (c) to restrict products or activities that we deem unsafe, inappropriate, or oﬀensive. We will notify you about any such change or modiﬁcation in accordance with Sections 20.9 and 20.10.
3.3 Your continued use of the Edgevana Marketplace (whether by permitting your Provider Service Profile to remain on the Edgevana Marketplace or otherwise) or use of Edgevana Services after the eﬀective date of any change to this Agreement in accordance with this Section 3 will constitute your acceptance of that change. If any change is unacceptable to you, you will notify us promptly and cease using the Edgevana Marketplace or any Edgevana Services and to end the Agreement as described in Section 19.
4. Your Provider Service Profile
4.1 If your application to join the Edgevana Marketplace is approved by us, you will be asked to provide one or more Provider Service Profiles for each location in which you operate and each Provider Service you wish to provide through the Edgevana Marketplace. Membership of the Edgevana Marketplace will entitle you to place one or more Provider Service Profiles on the Edgevana Marketplace, as approved by us.
4.2 You will provide accurate and complete information to prepare each Provider Service Profile, as requested by us, and promptly update that information as necessary to ensure it at all times remains accurate and complete.
4.3 You agree:
4.3.1 not to knowingly allow any Provider Service to be advertised or placed for sale on the Edgevana Marketplace on your behalf which is not of merchantable quality or which you are unable to provide in accordance with the terms of the Model Customer Terms;
4.3.2 immediately to request the removal from sale on the Edgevana Marketplace of any Provider Service which for any reason, you are unable to supply in accordance with the terms of the Model Customer Terms; and
4.3.3 not to replace any Provider Service we remove from offer for sale on the Edgevana Marketplace without our prior written consent.
4.4 You represent and warrant that any Provider Service advertised or placed for sale on the Edgevana Marketplace by you and that the contents of each Provider Service Profile:
4.4.1 is not and does not contain content which may be: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any third party;
4.4.2 does not offend against the Laws of any country whose citizens might purchase it; and
4.4.3 is not intended primarily to advertise any business, except your business or that of your Affiliates.
4.5 You further represent and warrant:
4.5.1 that you own all necessary rights to provide any Provider Service advertised or placed for sale on the Edgevana Marketplace by you in accordance with the terms of the Model Customer Terms; and
4.5.2 that you own, or have an appropriate license in, all necessary Intellectual Property Rights contained in the Provider Service Description used to advertise the Provider Service on the Edgevana Marketplace and that such rights are sufficient to grant to us the rights required pursuant to Section 11.
4.6 We may use mechanisms that rate, or allow Customers to rate, your Provider Services and your performance as a Provider and we may make those ratings and that feedback publicly available.
5. Sales to Customers
5.1 We give no guarantee as to the success of any advertising placed or of any Provider Service Profile.
5.2 Edgevana is not responsible for the fulfilment of your contract to provide a Provider Service.
5.3 Any Customer Contract is accepted when you acknowledge the order or commence providing the Provider Service. Until that time, the Customer’s action on the Edgevana Marketplace is an invitation to treat.
5.4 Provider Services may be offered for sale subject to any discount or promotion arranged between Edgevana and you.
5.5 At our discretion, we may use the services of a specialist internet marketing business associated with Edgevana. Unless otherwise agreed with you in advance, this will be done at our cost.
5.6 Where you enter into a Customer Contract with a Customer, you will notify us of any extension, renewal, or re-contracting of that Customer Contract, and of any order of additional services or capacity by that Customer whether or not under or in connection with that Customer Contract.
6. Collection of Customer fees
6.1 We may introduce an Edgevana Service to enable us to provide consolidated invoicing and payment services to Customers. If we do so then you agree that you will participate in such an Edgevana Service, subject to its terms. We will notify you when we start providing such an Edgevana Service.
7. Complaints about Provider Services
7.1 You agree that you will at all times:
7.1.1 reply promptly and in any event within 24 hours to any Customer message or other correspondence;
7.1.2 comply with all Laws relating to all aspects of the Customer Contract, relating in particular to your obligations to meet service level requirements;
7.1.3 when you have an obligation to return money to a Customer for any reason, you will do so immediately in line with the Customer Contract and any relevant Policies;
7.1.4 comply with our Policies.
7.2 You will provide information to us in respect of any claim from a Customer, any complaint regarding non-supply and any dispute as to payment with a Customer.
8.1 From the date upon which you enter into each Customer Contract, you will pay to us the Membership Fee applicable to that Customer Contract, which Membership Fee shall become payable every month during the term of that Customer Contract.
8.2 If the Customer Contract is terminated by the Customer prior to the expiry of its term due to breach of the Customer Contract by you, the Membership Fee shall continue to be payable to us for the originally specified term of the Customer Contract. If the term of the Customer Contract is extended or renewed beyond its originally specified term, or is otherwise re-contracted, the Membership Fee shall be payable to us throughout the period of extension or renewal or replacement term. Where additional services or capacity are ordered by a Customer, Edgevana may increase the Membership Fee in line with the value of such additional services or capacity.
8.3 From time to time we may offer to you additional Edgevana Services, for which we may charge an additional fee as stated on the Edgevana Marketplace.
8.4 We reserve the right to change the method of calculating the Membership Fee due in respect of new Customer Contracts from to time, but in any event the actual Membership Fee payable by you in respect of a Customer Contract will be confirmed to you in writing before you enter into that Customer Contract (subject to sections 8.2 and 8.3).
8.5 We will issue invoices for any fees due to us, and such fees shall be payable, without set off or deduction, within 14 days from receipt of invoice. We may deduct fees payable to us from any sums paid by a Customer in respect of Provider Services where we process payment of those sums.
9. Posting Content to the Edgevana Marketplace
9.1 We invite you to Post Content to the Edgevana Marketplace for marketing your services and services and in other ways. We have to regulate your use of the Edgevana Marketplace to protect our business and our staff, to protect other users of the Edgevana Marketplace and to comply with all applicable Laws.
9.2 If you Post Content to any public area of the Edgevana Marketplace, it becomes available in the public domain. We have no control over who sees it or what anyone does with it.
9.3 Posting Content of any sort does not change your ownership of the copyright in it. We will not protect your rights for you.
9.4 You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any applicable Laws, which may occur as a result of any Content having been Posted by you.
9.5 You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
9.6 Please notify us of any security breach or unauthorized use of your account.
9.7 We do not undertake to moderate or check any item Posted but we may refuse or edit or remove a Posting which does not comply with these terms.
9.8 You agree that you will not use or allow anyone else to use the Edgevana Marketplace to Post Content or undertake any activity which is or may:
9.8.1 be unlawful, or tend to incite another person to commit a crime;
9.8.2 be obscene, offensive, threatening, violent, malicious or defamatory;
9.8.3 be sexually explicit or pornographic;
9.8.4 be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
9.8.5 use a Posting to solicit responses unconnected with the purpose of the Edgevana Marketplace or the terms proposed by this Agreement;
9.9 In addition to the restrictions set out above, a Posting must not contain:
9.9.1 hyperlinks, other than those specifically authorized by us;
9.9.2 keywords or words repeated, which are irrelevant to the Content Posted.
9.9.3 the name, logo or trademark of any organization other than yours.
9.9. 4inaccurate, false, or misleading information;
9.9.5 material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18 years old.
10. Security of the Edgevana Marketplace
10.1 If you violate the security of the Edgevana Marketplace we shall take legal action against you.
10.2 You agree that you will not, and will not allow any other person to:
10.2.1 modify, copy, or cause damage or unintended effect to any portion of the Edgevana Marketplace, or any software used within it.
10.2.2 link to the Edgevana Marketplace in any way that would cause the appearance or presentation of the Edgevana Marketplace to be different from what would be seen by a user who accessed the Edgevana Marketplace by typing the URL into a standard browser;
10.2.3 download any part of the Edgevana Marketplace, without our express written consent;
10.2.4 collect or use any service listings, descriptions, or prices;
10.2.5 collect or use any information obtained from or about the Edgevana Marketplace or the Content except as intended by this Agreement;
10.2.6 aggregate, copy or duplicate in any manner any of the Content or information available from the Edgevana Marketplace, other than as permitted by this Agreement or as is reasonably necessary for your use of Edgevana Services; or
10.2.7 share with a third party any login credentials to the Edgevana Marketplace.
10.3 You are solely responsible for maintaining the security of your login credentials. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your login credentials. If your login credentials are compromised, you must immediately change your password.
11. Copyright and other intellectual property rights
11.1 Edgevana Content
11.1.1 All Edgevana Content on the Edgevana Marketplace, for example page text, graphics, logos, images, audio clips, digital downloads, data compilations, and software, is the property of either us or our Affiliates or other Edgevana Marketplace users. It is all protected by international Laws related to Intellectual Property Rights.
11.1.2 You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any Content, in whole or in part, except as is expressly permitted in this Agreement or with our written consent.
11.1.3 For the sake of good order, you should note that copyright exists in compilations and graphic images, shapes and styles, as well as in raw text.
11.2 Provider Materials
11.2.1 You grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative Intellectual Property Rights to use any and all of your Provider Materials for the Edgevana Services and to sublicense the foregoing rights to our Aﬃliates; provided further, however, that nothing in this Agreement will prevent or impair our right to use your Provider Materials without your consent to the extent that such use is allowable without a license from you or your Aﬃliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
12.1 You represent and warrant that (a) you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Edgevana Marketplace within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you to us or our Aﬃliates is at all times accurate and complete; (d) you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) you will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
13. Interruption to our service
13.1 We give no representation or warranty that the Edgevana Marketplace or the Edgevana Services will be satisfactory to you.
13.2 We will do all we can to maintain access to the Edgevana Marketplace, but it may be necessary for us to suspend all or part of the Edgevana Marketplace or the Edgevana Services for repairs, maintenance or other good reasons. We may do so without telling you first.
13.3 You acknowledge that access to the Edgevana Marketplace or any Edgevana Service may also be interrupted for reasons beyond our control. You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to access to the Edgevana Marketplace or any Edgevana Service (whether for reasons beyond our control or otherwise).
14. Our disclaimers
14.1 We are not responsible for any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any other indirect or consequential loss whatever.
14.2 The Edgevana Marketplace contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website.
14.3 We are not liable in any circumstances for damages resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of the Edgevana Marketplace.
14.4 The Edgevana Marketplace and the Edgevana Services are provided “as is”. As to the Edgevana Marketplace and the Edgevana Services, we make no representation or warranty of any kind, express or implied, including, without limitations, warranties:
14.4.1 as to fitness of the Edgevana Marketplace or any Edgevana Service for a particular purpose;
14.4.2 as to availability and accessibility, without interruption, or without error;
14.4.3 any obligation, liability, or remedy in tort whether or not arising from our negligence;
14.5 THE EDGEVANA PLATFORM AND THE EDGEVANA SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE EDGEVANA PLATFORM AND/OR THE EDGEVANA SERVICES, YOU USE THEM AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE EDGEVANA PLATFORM OR THE EDGEVANA SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
14.6 BECAUSE EDGEVANA IS NOT INVOLVED IN TRANSACTIONS BETWEEN PROVIDERS AND CUSTOMERS, IF A DISPUTE ARISES BETWEEN A CUSTOMER AND A PROVIDER, EACH OF THEM RELEASES EDGEVANA (AND ITS AFFILIATES, AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14.7 Limitation of Liability
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF EDGEVANA HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX-MONTH PERIOD PAID BY YOU TO EDGEVANA.
15. Your indemnity to us
15.1 You agree to indemnify us against all loss and expense, including legal fees and management time related in any way to:
15.1.1 a claim of any nature by any person in respect of any Provider Service;
15.1.2 protecting the reputation of our business by our making a payment to a customer of yours in circumstances where you have failed to make that repayment or otherwise comply with your contract with that customer;
15.1.3 any cost to us arising from a decision by us to comply as your agent, with any obligation of yours, whether or not we have your permission, arising out of any regulation or applicable Laws, including:
15.1.3 (a) the deletion or amendment of any text or other content you have placed on the Edgevana Marketplace;
15.1.3 (b) any payment we make on an ex gratia basis, arising from a contract between you and a customer;
15.1.4 legal or other fees we incur in defending a claim or the imposition of a fine or penalty;
15.1.5 our management time in dealing with any failure or alleged failure by you to comply with any relevant regulation or applicable Laws.
15.2 You will defend, indemnify, and hold harmless Edgevana, and our oﬃcers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to (a) your non-compliance with applicable Laws; (b) your Provider Services, including the oﬀer, sale, fulﬁllment, refund, cancellation, return, or adjustments thereof, your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death (to the extent the injury or death is not caused by Edgevana), or property damage related thereto; (c) your Taxes and duties or the collection, payment, or failure to collect or pay your Taxes or duties, or the failure to meet tax registration obligations or duties; or (d) actual or alleged breach of any representations you have made.
16.1 You will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with an insurance limit of US$ 10 million (or local currency equivalent) per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Edgevana and its assignees as additional insureds. At our request, you will provide to us certiﬁcates of insurance for the coverage.
17. Conﬁdentiality and Personal Data
17.1 During the course of your use of the Edgevana Marketplace and Edgevana Services, you may receive Conﬁdential Information. You agree that for the term of the Agreement and 5 years after termination: (a) all Conﬁdential Information will remain Edgevana’s exclusive property; (b) you will use Conﬁdential Information only as is reasonably necessary for your participation in the Edgevana Marketplace and Edgevana Services; (c) you will not otherwise disclose Conﬁdential Information to any other person except as required to comply with the Law; (d) you will take all reasonable measures to protect the Conﬁdential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) you will retain Conﬁdential Information only for so long as its use is necessary for participation in the Edgevana Marketplace and Edgevana Services or to fulﬁll your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulﬁllment of statutory obligations.
17.2 The foregoing Section does not restrict your right to share Conﬁdential Information with a governmental entity that has jurisdiction over you, provided that you limit the disclosure to the minimum necessary and explicitly indicate the conﬁdential nature of the shared information to the governmental entity. You may not issue any press release or make any public statement related to the Edgevana Marketplace or Edgevana Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
17.3 You may not use Personal Information in any way inconsistent with Applicable Data Protection Laws. You must keep Personal Information conﬁdential at all times (the above 5 years’ term limit does not apply to Personal Information).
17.4 With regard to Personal Information which might be transferred from you or a Customer to us for the fulfilment of our services, the parties acknowledge that they act as independent data controllers and are each solely and independently liable for complying with all Applicable Data Protection Laws. Shall Edgevana process any Personal Information on your behalf, the parties agree to enter into data processing terms to the extent required pursuant Applicable Data Protection Laws.
18. Export controls
18.1 You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
19.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
19.1.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
19.1.2 the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
19.1.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
19.1.4 any claim or demand is made against us by any Customer in relation to you or any Provider Service;
19.1.5 upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of that other party’s debts, (ii) upon that other party making an assignment for the benefit of creditors, (iii) upon that other party’s dissolution or ceasing to do business, or (iv) if that other party takes or suffers any action similar to any of the above in any jurisdiction; or
19.1.6 any warranty given by the other party in this Agreement is found to be untrue or misleading.
19.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement on giving not less than 30 days written notice to the other party.
19.3 If this Agreement terminates, we may:
19.3.1 terminate your account and refuse access to the Edgevana Marketplace;
19.3.2 remove or edit Content, or cancel any Provider Service Profile at our discretion; and/or
19.3.3 resort to dispute resolution procedures.
19.4 Termination of this Agreement shall not affect your liability to pay the Membership Fee in accordance with Section 8.
20. Miscellaneous matters
20.1 You undertake to provide us your current land address, e-mail address and telephone number as often as they are changed together with all information that we may require to enable us to fulfil our obligations under this Agreement.
20.2 So far as any time, date or period is mentioned in this Agreement, time shall be of the essence.
20.3 If any term or provision of this Agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the Laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
20.4 Any obligation in this Agreement intended to continue to have effect after termination or completion shall so continue.
20.5 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.6 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
20.7 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under this Agreement. You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this Agreement.
20.8 No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
20.9 When you visit the Edgevana Marketplace or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on the Edgevana Marketplace. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.
20.10 Any communication to be served on either of us by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail or by posting notices on the Edgevana Marketplace. It shall be deemed to have been delivered:
20.10.1 if delivered by hand: on the day of delivery;
20.10.2 if sent by post to the correct address: within 72 hours of posting;
20.10.3 if sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender;
20.10.4 if posted via the Edgevana Marketplace: within 24 hours of posting.
20.11 In the event of a dispute between us, then, if we so ask, you undertake to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation.
20.12 This agreement does not give any right to any third party, except that any provision in this Agreement which excludes or restricts the liability of our directors, officers, employees, subcontractors, agents and affiliated companies, may be enforced by them.
20.13 We shall not be liable for any failure or delay in our performance of this Agreement, which is caused by circumstances beyond our reasonable control, including any labor dispute.
20.14 In the event of any conflict between any term of this Agreement and the provisions of the articles of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this Agreement shall prevail.
20.15 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of Delaware in the United States of America and you irrevocably agree that the courts of that State shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, the same.